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LEGAL104 Legal Method B - Coggle Diagram

- - - - Point A is where that would happen. So it might be that the court says therefore, we're going to have to order that there's a contract here, and that needs to be honoured or that the offer needs to be accepted or something else. Okay. So point A is a very practical place where we see what the court does, what the court requires to be done, what the court orders in order to give that decision some life, so it's no longer just an answer. It's actually an answer, that will change.
- - - - First example, comes from an old case end of the 19th century, who Carl ill and carbolic smoke ball company. Now this is a was a facsimile of an original advert for a product, a product called the smoke ball. And it's not the clearest there, but you can probably pick up from that, that this was a kind of a medicinal product. Okay. This was a sort of a medicine and the makers of the smoke ball. They advertised this, this product all over the place. This is an old English case, all over the country on the London Underground and elsewhere with these adverts and basically what they said well, they claimed about this local was that if you bought it and used it according to the instructions, okay, sort of in half like a 19th century vape I think, I don't know. It looks disgusting. But anyway, it's somebody sticking up the nose. If you use this and if you then still develop any of these various ailments, okay. Influenza, coughs, colds, headache, etc, etc. then the company will actually give you a chunk of money, okay? So in other words, he's so confident in the, in their products that they're willing to kind of bet that you won't get sick if you use this lowball. So much so that you would be rewarded. With 200 pounds there if you get sick. So the story behind Carlo and carbolic smoke ball you might be able to guess is that a particular person, along with many 1000s of others, bought herself a smoke ball this is Carl. She used it. And then unfortunately, she still got sick. So in good faith, she wrote to the company and she explained what had happened and asked for her reward and asked for her money. Which points the company laughed. Maybe I don't know and said no chance. This. This was never supposed to be a binding offer. This wasn't a serious offer.
        
        This is an advert, okay, its sole purpose is to sell our products. Okay, it's to entice you into buying our products. You don't you don't take this stuff. Seriously. Okay. You fall probably said I don't know. Okay, so Mrs. Carlyle asked for her money. company said no. And long story short, this ends up before the court. So Mrs. Carl's argument in contract terms, is that carbolic smoke ball company had made an offer. It has some terms to it. Okay, some detail. And Mrs. Carlisle by going to the shop and buying the product had accepted that offer if they've offered, she's accepted. Bingo. We've got our agreement. We've got the beginnings of our contract, and she should be able to rely on that in order to get her 200 pounds. The snowball companies argument was the country this was never this advert was never an offer. This advert was something less than an offer. In 19th century terminology in pocket terminology, the counsel for the company described it as mere puff. Okay, just without substance just you know, smoking, whatever. Okay. Now, this had to be decided on. And ultimately, the court decided that Mrs. Carlo was right, that there was enough certainty in here for the company to be told that what they were doing was offering something that she was able to accept. She did indeed accept it. She paid her harder money for the smoke or she got ill, and so she was entitled to her 200 pounds reward. Okay, so that's something that distinguishes or an example of distinguishing between an offer and something less than an offer. Okay, me or puff to use that terminology.
  - - - Pars Technology v City Link Transport Holdings Ltd [1999] EWCA Civ 1822- Defendant offered to pay £13,500 plus a refund of carriage charges of £7.55 plus VAT (GST). Claimant responded to the offer in a letter stating that the defendant’s offer to pay £13,507.55 including VAT was accepted. Defendant claimed it was not a valid acceptance.
        
        Must be unequivocal, unconditional and match the offer exactly (Mirror-image rule). But note
        
        C of A held that the claimant was merely restating the offer in a different way. The courts will not necessarily require exact precision, if it is evidently clear that the parties were in agreement.
    - - Defendant offered to sell a farm to Plaintiff for £1,000. Plaintiff offered to buy the farm for £900. Defendant rejected that offer. Plaintiff then wanted to accept the initial offer of £1,000. Defendant refused to go through with the transaction and Plaintiff sought specific performance.
        
        It was held that Plaintiff’s offer of £900 was not an acceptance but a counter-offer and his final communication was not an acceptance of the original offer but a further offer to buy at £1,000 which the defendant was at liberty to accept or reject.
        
        A counter-offer is a rejection of an offer and destroys it, rendering it incapable of subsequent acceptance
        
        Must not introduce new terms.
    - - A second or subsequent offer
    - - It was held that a delay of 5 months meant that an attempt to accept an offer to buy shares was ineffective.
  - - - ‘A valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other.’
    - - ‘An act or forbearance of the one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable.’
    - - If I give you my book and you give me the $10 If we do that there and then here and now. Then we've got what's called executed consideration that means consideration that has happened okay. It happens immediately at the point of the contract forming. We've got our consideration there.
      - there is another way to think another way to give consideration and that is executory consideration. That's when instead of me handing over the book and you handing over the $10 We agree that we'll meet next Wednesday, two o'clock, and I'll have the book with me and you'll have a $10 with you. And we'll exchange if we've agreed that that's what's going to happen.
        
        Even though I still got the book in my possession and you've still got your $10 in your possession, that doesn't stop it from being a contract. consideration is in the future. executory. hasn't been executive executed yet, but it nevertheless is consideration.
  - - - Because offer and acceptance (agreement) must demonstrate a ‘meeting of minds’, the terms of an agreement must be sufficiently certain to evidence this.
      - Focus on wording/ looking at the correspondence as a whole.
  - - - Do the parties have capacity then you can come to the conclusion that you almost certainly have an enforceable contract that contract that you're then able to enforce against the other person if necessary.
- - - - The sentence will why you when actually is based off the information that you get given. And that's when your mood problem. So you need to draw out the facts and chain them together into a narrative. Explain to me what's going on and why your client has done bad things, but those are justifiable based off your understanding of material facts now there's a danger here if you infer too much, right? You infer too much and I don't care too much, because I don't know if those things actually happen in court. We justify those things using evidence, affidavits and emails and all the rest of the correspondence etc. Okay, but you don't have that luxury. The only evidence you have is in that mood problem. That is the only evidence you have. Anything that is not mentioned in that mood problem is not evidence, but you are literally inviting the court to infer something and the most dangerous thing you can do is give evidence from the flight tell you this. And I tell you, the sky is black at the moment. And they say Well hang on a second, where's your proof? And I say well, you know, not entirely sure. The court can say that's really nice, Mr. Hong, but we don't care. There's no evidence right now, at least not at the moment, actually in 12 hours. But at the moment, we don't care. So any inference that you make from a MOOC problem better be pretty good. Because as a judge, you can literally say, how do you prove that it's not written in there? There is no evidence. So material facts is material facts that are in evidence in the mood problem. All right, so you can chain them together, create a narrative and say, Actually, the reason why this narrative This is because the mood problem, they've done this, they've done this, they've done this, they've done this, either all makes sense or not making anything up. And through that, I invite you to draw the inference that's based off that evidence. The final part is optional, but generally quite effective. What happens if you lose? Not only what happens to you if you lose what happens to every other precedent case that comes before this court? If you lose, because if you lose that case, is now in law presumably, and has an impact on all future cases? Is that impact out of proportion? Is that bad law? If it is, feel free to tell them I might tell you you're wrong.
        
        Especially if you don't have the other two facts. Sorry if you don't have the other two parts of your theory, but if you're feeling confident, go for it. Tell them why. Rolling actually against you is that at the starting point, for this case, in the absence of any other argument is that you should actually wet. Okay, so to brim to very briefly go through what happens if you fail on any of these three points. If you fail, in the case law, the court is unrestricted and what tester can apply. Okay, so what that means is you have no framework so the court can say, Cool story in terms of the material facts, and yes, I accept that might be that weird. law, but can I just apply different tests instead? I have no legal basis to grant you what you're seeking. That's what happens if you fail on tasteful. If you fail on material facts, I'll say that's an awesome test that your client doesn't win on it. You don't satisfy your own legal framework. So therefore, you lose. If you fail on precedent, right, then the judge can say okay, well this is a case by case basis right? It has no impact on on any other case bought worse. If I rule in your favour, actually, the other thing happens I'm creating bad law by ruling in favour of view. And on that basis, even though it's an unfortunate situation, I'm going to deny what your client is seeking right applications in.
- - - - from Fisher and Bell. Now, in that case, the defendant was charged under the restriction of offensive weapons act 1959 In the UK, so he was said to be in violation of the Act because he had a flip knife. Okay, so everyone, you know those knives that you so the prohibited the sale of such knives and according to the prosecution, by displaying this knife in the window of his shop, the defendant was guilty and he had violated that provision.
        
        In interpreting this, that provision, the court took a literal approach, okay. And they stated that the knife in fact was only displayed and it was not offered for sale. So it was an invitation to treat, but it was not actually there was no exchange. Okay, so Bill in in displaying the knife was he did not offer for sale. what the court said was he was exposing for sale.
        
        Now there is a complication with that, because there were other laws around at the time where the court looked at the definitions within those statutes. and in those statutes, the words exposed for sale, were included. But in this particular act. The words expose for sale was not there. So the fact that he was displaying it meant that he was not in violation of the act. So the other laws that the court looked at they had to deal with meat and some other things. But what happened after that was, Parliament actually amended that, that Act to include display for sale. Okay, so you see how circumstances exist. and when those change, parliament will then create laws to sort of not as a band aid but to cover up whatever defect that may exist. Okay so a lacuna in the law.
      - Keep in mind, that sometimes using the literal approach or looking at the text of legislation will create an absurd result. So let's go back to Fisher and Belle, for example, for us looking at you know, the the facts of the case, him placing the knife in the window, In our you know, as ordinary people looking at it, we're like yeah, he's that's displaying it for sale, he wants to sell it. There was even a price tag attached to the flick knife.
        
        Okay. So but but because the court needed to interpret it within the ambit of that specific provision. They couldn't say that. Yeah. displaying the mind was offering it for sale. So when, because if they did, they would really be encroaching on Parliament's powers. Okay, so so they will only create their own definitions if one does not already exist. within the law. Okay within the statute.
        
        The other thing was looking at the text of statutes and interpreting it like that is that there's less flexibility. Again, we go to Fisher and Bell. There is no flexibility when interpreting and often, the end result will be an absurd one. So when that happens, the court can then take the liberty to look at other means of interpreting.
      - This is an example of the legislation being very explicit about the definition of phrase over phrasal phrases. So this is an example of a definition that arose because of the need, because the current circumstances required Okay, so the context in which it was created was that there was more communication, electronic communication emails will be used, Okay. so because more people were communicating in that manner, through those means.
        
        The legislature then saw the need to create this okay, so this is the current definition and remember this because it's important for your assessment, Okay.
    - - Welsh v Gatchell [2009] 1 NZLR 241
        
        So in this case, Mr. Welsh and Mr. getchell. They were they had agreed on up so they were negotiating okay for land purchase, and they had agreed on a purchase price and a deposit for property that was then to be subdivided by the vendor. so the vendor here was the actual And from that they also agreed on other things, some fees that will be paid. And things I had to do with the purchase contract all that. After that, Gatchell stated that he would send a document recording everything that they had agreed to Okay after the meeting. So later he faxed confirmation to Welsh, who confirm the contents by phone. Important to note that the fax was never signed by either party.
        
        An agreement was then later computed by the Welch's so the husband and wife who signed it and sent it with a check to the gutturals The the agreement that was sent it differed only slightly from the facts that was sent, but that agreement to was never signed.
        
        Now, this is an extremely long story. So to shorten the, the story, Gatchell died And his lawyers told the Welch's that his wife so the widow did not want to proceed with the sale. Now, when you'll read the case, and you will have to read the case, you will see that there were issues with the fax There were issues with the header, the fact that it was not signed. The was the header The same as having a signature and then was that offer an acceptance. Now the court in considering this case, it looked at different laws, different cases as well. For example, the contracts Enforcement Act 1956. It looked at the Electronic Transactions Act of 2002, the interpretation Act, The Property Law Act, and it looked at common law so PDL Industries Ltd case that was one of the cases that it looked at.
        
        Now, without going into detail about the analysis in order to reach its decision. It looked at the text of the law, the purpose and the legislative context in which was created which was created. So the text of the contracts Enforcement Act was a court had to interpret with a sign this is an example one of the things that didn't consider whether signed a signature. The word signed or signature and was in writing. Now, when looking at section two of the act of the words, in writing, the court determined that the purpose of the act was to protect people from fraud and fraudulent activity and fraudulent promises. With regard to the legal standards for signatures, Justice Miller He provided a useful statement where he's now got it on the slide. But he referred to the PDL industry's case and looked at the ordinary connotation of signed and also at the English Oxford Dictionary, you you might think that dictionaries are not used by courts, but as an external source as a secondary source. They're often used okay to provide definitions. So, in that, what he looked at was see right at the ones or persons mark on a document which indicates his or her intention to be bound by its context. So the meaning of signature I will hope that you would read this case, especially for the moot But so that was just a sort of very, very, very brief summary of one thing that the court had to consider. I didn't want to go into too much detail because we will be here until the end of days.